Citroni on Enforced Disappearance in Mexico

Capture d’écran 2015-06-01 à 17.09.19

“Enforced Disappearance in Mexico: between progress and remaining challenges” 

by Gabriella Citroni

FICHL Policy Brief Series No. 39

“Introduction

Like many countries in Latin America, Mexico experienced the systematic use of enforced disappearance between 1960 until the early 1980s, during the so-called ‘Dirty War’. Successive years have been characterised by the struggle of family associations of disappeared persons to establish the fate and the whereabouts of their loved ones, preserve their memory and obtain justice and reparation.

Since the mid-2000s, there has been a new wave of enforced disappearances: currently, Mexico has the highest number of registered cases in Latin America.[1]

On 26 September 2014, tragedy struck once more, with the enforced disappearance of 43 students from the teachers’ school in Ayotzinapa, Guerrero, with allegations of collusion between organised crime, the local mayor of the town of Iguala, and local police[2], reigniting national and international attention on enforced disappearance. In March 2015, a fact-finding mission was concluded by the Interdisciplinary Group of Independent Experts, designated by the Inter-American Commission on Human Rights (IACHR), following an agreement between the IACHR, the Mexican State and representatives of the disappeared students.[3]

This policy brief focuses on the progress made, and analyses the remaining challenges in the fight against enforced disappearance in Mexico. In order to explore future prospects it also takes into consideration the recommendations of international human rights mechanisms.

Enforced disappearance in international law and the obligations assumed by Mexico

Enforced disappearance constitutes a multiple and continuous violation of several human rights[4] as well as a crime under international law that, under certain conditions, can amount to a crime against humanity.

Mexico is a State party to the two international treaties concerning enforced disappearance of persons: it ratified the Inter-American Convention on Forced Disappearance of Persons on 9 April 2002, and the International Convention for the Protection of All Persons from Enforced Disappearance on 18 March 2008. To date, Mexico has not recognised the competence of the UN Committee on Enforced Disappearances (CED) to receive and examine individual and inter-State communications.[5]

Likewise, on 28 October 2005, Mexico ratified the Rome Statute of the International Criminal Court (ICC). Art. 7(2)(i) of the Statute lists the enforced disappearance of persons as a crime against humanity when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of such attack.[6]

By ratifying these three treaties, Mexico is bound by international obligations concerning the prevention and suppression of enforced disappearance and the punishment of those responsible. Nonetheless, in several instances, the State has not fully complied with these obligations.

With regard to the Rome Statute, Mexico has not yet adopted the necessary legislative measures to guarantee the full implementation of the treaty. To date, neither the Mexican Federal Criminal Code nor the Criminal Codes of the 32 states (including Mexico City) define crimes against humanity, including enforced disappearance as a crime against humanity. The lack of a specific crime hinders effective prosecution at the national level and the rigorous application of the principle of complementarity vis-à-vis the ICC.

The Judgment of the Inter-American Court of Human Rights in the case of Radilla Pacheco

On 26 November 2009, the Inter-American Court of Human Rights (IACtHR) rendered its judgment in Radilla Pacheco v. Mexico concerning the enforced disappearance of Mr. Rosendo Radilla Pacheco, carried out by members of the military from 25 August 1974 during the Dirty War. Taking into account the continuous character of the crime, the IACtHR dismissed the ratione temporis preliminary objection filed by the State, and asserted its jurisdiction over the case even though Mexico became a party to the American Convention on Human Rights (ACHR) on 24 March 1981, and accepted the jurisdiction of the IACtHR on 16 December 1998.

The IACtHR found Mexico responsible for violating Mr. Radilla Pachecho’s rights to personal liberty, humane treatment, juridical personality and life in contravention with the obligation to respect and ensure such rights and Arts. I and XI of the Inter-American Convention on Forced Disappearance of Persons (IACFDP). The Court also found Mexico responsible for violating, to the detriment of Mr. Radilla Pachecho and his relatives, the rights to humane treatment, fair trial and judicial protection as established by Arts. 1.1 and 2 of the ACHR and Arts. I, paragraphs (a), (b) and (d), IX and XIX of the IACFDP. Finally, the IACtHR established that Mexico had breached the duty to adopt domestic legal provisions pursuant to Art. 2 of the ACHR, in relation to Arts. I and III of the IACFDP with respect to the crime of enforced disappearance.

In addition to the payment of compensation to Mr. Radilla Pacheco’s relatives, the IACtHR ordered Mexico, inter alia, to carry out diligent and effective investigations within a reasonable period of time and to identify, prosecute and punish those responsible; to continue with the active search and immediate location of Mr. Radilla Pacheco or his remains; to adopt within a reasonable time the necessary legal reform to make Art. 57 of the Military Justice Code compatible with international standards; amend Art. 215-A of the Federal Criminal Code; carry out seminars or courses on a permanent basis on the case-law of the Inter-American Human Rights System concerning the jurisdictional limits of military criminal justice, as well as training on proper investigation and prosecution of acts which constitute forced disappearance; to hold a public function to acknowledge responsibility for the facts of the case and in memory of Mr. Radilla; and provide psychological support to the relatives of the victim.

The IACtHR thoroughly analysed the phenomenon of enforced disappearance during the Dirty War in Mexico and required the adoption of necessary measures not only to provide restitution in the specific case, but also to effectively address the hundreds of other enforced disappearances carried out in the same context as well as to prevent future cases.

Several remedies ordered by the Court remain unimplemented. However, the State did hold a public ceremony to acknowledge its responsibility (on 17 November 2011 in the city of Atoyac, although the victim’s relatives were absent); it also paid the required compensation; and carried out courses on human rights concerning the limitation of military jurisdiction and the prosecution of enforced disappearance. Additionally, in July 2014, Mexico withdrew its reservation to Art. IX of the IACFDP, in which it recognised the jurisdiction of military courts in cases of enforced disappearance.”

Read the complete Policy Brief Gabriella Citroni, Enforced Disappearance in Mexico: between progress and remaining challenges‘, FICHL Policy Brief Series No. 39 (2015).

PURL: https://www.legal-tools.org/doc/2fafee/

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Gabriella Citroni is Professor of International Human Rights Law at the University of Milano-Bicocca (Milan, Italy). She is a legal advisor for the Latin American Federation of Associations of Relatives of Disappeared People (FEDEFAM), and for the Swiss NGO TRIAL (Track Impunity Always). 

 


[1] See the annual reports of the WGEID (for 2014 see doc. A/HRC/27/49 of 4 August 2014).

[2]Human Rights Watch, ‘Mexico: Delays, Cover-Up Mar Atrocities Response’, 7 November 2014, at http://www.hrw.org/news/2014/11/07/mexico-delays-cover-mar-atrocities-response, last accessed on 29 April 2015.

[3] IACHR, ‘Interdisciplinary Group of Experts to Launch at IACHR Headquarters its Work on the Case of the Students of Ayotzinapa, Mexico’, Press Release 008/15, 30 January 2015.

[4] On the continuous nature of enforced disappearance see Art. 17, para. 1, of the Declaration on the Protection of All Persons from Enforced Disappearance; Art. III of the Inter-American Convention on Forced Disappearance of Persons; and Art. 8, para. 1 (b), of the International Convention for the Protection of All Persons from Enforced Disappearance. See WGEID, General Comment on Enforced Disappearance as a Continuous Crime, 2010, at http://www.ohchr.org/Documents/Issues/Disappearances/GC-EDCC.pdf, last accessed on 29 April 2015.

[5] Pursuant to Arts. 31 and 32 of the International Convention.

[6] On 12 September 2014, civil society associations submitted a public communication to the Prosecutor of the ICC. See FIDH, CMDPDH, CCDH, ‘México: Informe sobre presunta comisión de crímenes de lesa humanidad en Baja California entre 2006 y 2012’.

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